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To Infinity and Beyond: Legislating for the Peaceful Use of Outer Space

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About The Author

Adiba Firmansyah (Regular Writer)

Adiba is currently studying for her LLB at Middlesex University, Dubai. Her main areas of interest are human rights and public law. Outside of the law, Adiba enjoys running, cycling and drawing.

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The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Article I of the Outer Space Treaty

Space law is an area of public international law that governs outer space activities. These activities - ranging from space mining to the launching of satellites - have become increasingly important to states, and their competing interests have required the creation of numerous international and domestic agreements. However, the current system has attracted criticism for resembling ‘a gentlemen’s agreement’ rather than a binding framework. Unprecedented human activity in outer space has led, among other problems, to the accumulation of space junk and conflicts over who gets to extract resources from outer space and who should profit from them. A binding framework may be exactly what this area of law needs.

This article provides an outline of the history of space law and the current international legal framework. It proposes reforms to the law that may fix current issues while maintaining the ultimate objective of space law as envisioned more than half a century ago: the peaceful use of outer space.

A Brief History of Space and Law

The cut-throat atmosphere of the Space Race, starting in 1957, saw the Soviet Union and the United States compete to develop their capabilities in satellites, space probes, and human spaceflight.  National actors realised that they had to have a system in place to ensure the peaceful use of outer space, especially given the tensions and conflicts of the period, and the spectre of nuclear proliferation.

In 1958, discussions began in earnest between the US and the Soviet Union. These formed the basis for the presentation of issues to the UN. Following this, the UN created the Committee on the Peaceful Uses of Outer Space (COPUOS). The core of the legal system for space law is made up of the instruments that were negotiated by COPUOS in the 60s and 70s. These instruments include five core space treaties:

  • The Outer Space Treaty (1967) – limits the use of the Moon and other celestial bodies to ‘peaceful purposes’ only, and forbids ‘appropriation’ of celestial objects by governments.
  • The Rescue Agreement (1968) – requires states to provide all possible assistance in rescuing and returning astronauts who land within their territory.
  • The Liability Convention (1972) – assigns liability for damage caused by launched space objects.
  • The Registration Convention (1976) – requires states to aid the UN in keeping a registry of launched space objects.
  • The Moon Agreement (1984) – assigns jurisdiction over all celestial bodies to the international community and international law.o

The first four instruments have been ratified by most countries and all major space powers. However, only eighteen countries are party to the Moon Agreement and no major space power (ie. the USA, Russia, China, Japan, or the members of the European Space Agency) has ratified it. It may therefore be considered a failed treaty, as will be discussed later.

In addition to these core UN instruments, other norms have been concluded between states, including through the statutes of inter-governmental organisations such as the International Telecommunication Union and the European Space Agency. More and more countries are enacting national laws to implement international norms and to make sure that private space activities do not undermine international obligations.

New space rules are currently being created but arguably not at the pace that is needed. Progress in technology, driven by an increase in the activities of state and private actors, has given rise to new problems that require new legal solutio

Issue 1: Who Owns the Moon?

The ‘Heritage of Mankind’

The Outer Space Treaty of 1967 prohibits national claims of sovereignty over celestial bodies. From this, the question of ‘who owns the Moon?’ seems to have a simple answer: no-one does.

The Outer Space Treaty acts as the foundation for every other piece of space legislation created in the last fifty years, and was meant to address issues that would arise as space technology developed. As Christopher Johnson, space law advisor for the Secure World Foundation (a space activity NGO) explains, ‘All international space law follows from it and all national space activities fall under the treaty.’ The Treaty does this by setting out several basic principles, the most important being that space is free for exploration and use by all states, and that no claims of sovereignty can be made.

Later agreements such as the Rescue Agreement and the Liability Convention show the same common thread, defined by the era of Cold War tension in which they were negotiated: they deal primarily with states and their obligations to each other, but suffer from vague drafting and the relentless advance of time that hinders all aging laws. The Moon Agreement, created in 1979, attempted to address some of the deficiencies in the earlier treaties.

Article 11(1) of the Moon Agreement states that ‘the Moon and its natural resources are the common heritage of mankind.’ This provision is often read as meaning that is not possible for any one state or private person to appropriate the moon. This Agreement also applies to other celestial bodies such as asteroids.

The ‘heritage of mankind’ approach is expanded upon in Article 11(3) of the Moon Agreement which states that: ‘neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person’. This provision goes further than the original Outer Space Treaty, which primarily dealt with states and governments, and acknowledges the role of private persons and companies in this field while also restricting their ability to ‘claim’ the Moon and its resources.

However, as mentioned previously the Moon Agreement has only been ratified by eighteen countries, and not one of these is a spacefaring nation. The failure of the Moon Agreement leaves a substantial gap in space law that may soon be tested by the private sector.

The Gap

In 2015 the United States passed the Commercial Space Launch Competitiveness Act. Sec 402 of the bill acknowledges international obligations but also asserts:

‘the right of US citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with [US international obligations] and subject to authorization and continuing supervision by the federal government’

Indeed, this legislative framework has already encouraged private actors in the US such as Amazon CEO Jeff Bezos, who in May this year set out his plans for Blue Origin, his rocket-launch firm, and their ambitious vision for a future lived in outer space: not only extracting resources from the moon, but using them to build artificial settlements in orbit.

While firms like Blue Origin do not yet have the technology required to mine precious metals and other raw materials on the Moon or from asteroids, this development is predicted by some in the private sector as soon as 10-20 years from now, and an economy around space resources is already rapidly evolving. The implications are far-reaching: as academic Lorenzo Gradoni points out, extracting resources from asteroids could substantially change market conditions on Earth. This possibility has given rise to predictions of a new space race that is commanded by private actors rather than states.

There may also be a new opportunity for space law to become part of mainstream legal scholarship rather than a specialised regime based on a handful of Cold War treaties. With space activity increasing, and both states and private actors showing an interest in extracting valuable resources from the moon, the failure of the Moon Agreement leaves a substantial space for reform by lawyers and legislators today.

Who Should Own The Moon?

When discussing space law, international lawyers tend to draw on one of two analogies closer to home. The first is the high seas: there is no nation that has sovereignty over the sea and there is therefore no need to ask for international permission before extracting resources such as fish. The second is the seabed, mining which is subject to stringent requirements and licensing regulations by the International Seabed Authority (ISA).

The Moon Agreement attempted to establish a regime similar to that of the International Seabed Authority (ISA), possibly to head off the potential free-for-all suggested by the high seas analogy, but as mentioned before, the treaty was never widely accepted. Patrick Slonski of Clyde & Co argues that ‘spacefaring states like voluntary standards and non-spacefarers like the idea of international obligations.’ In short, the states most in need of restraint are those with the most to gain from a new gold rush, and they are unlikely to agree to binding international restrictions.

Accordingly a less stringent approach, based on standards these powers will voluntarily agree to (and then put into domestic law) seems more likely to be implemented than a complete surrender of jurisdiction, as in the Moon Agreement. As mentioned earlier, the United States of America has already enacted legislation allowing private actors to exploit, own, and sell resources from space with supervision from the federal government. Luxembourg followed suit in 2017, and other countries such as the United Arab Emirates plan on doing the same.

The exploitation of resources on the Moon also calls for a thoughtful approach to the distribution of the proceeds of space. The ‘common heritage’ approach focused mainly on developed versus developing nations and is considered out of date by some. These critics have argued in favour of a concept of ‘stakeholder interest’ that focuses more on individuals and their rights, using the broader concept of a ‘stakeholder’ to recognise that interests in space activity should go beyond the billionaires and states currently engaging in it.

How best to reflect this in law is a separate discussion. Lyall and Larson, for instance, propose that stakeholder interest be protected by introducing a public service obligation on spaceship or satellite operators, with compliance monitored by an international agency. Alternatively they consider whether spacefaring companies should pay fees for the resources they mine on the moon and then distribute these fees in the ‘world interest.’ These ideas have yet to be subjected to much scrutiny as to how effective they would be – or more importantly, how much opposition from states and companies they would face – but the relatively undeveloped nature of space law for now allows us to explore new and novel ideas about how the world should be order

Issue 2: What About All the Debris?

The Current System

Another pressing problem for space law is managing debris. While 500,000 pieces of space junk in orbit around Earth are tracked by NASA, there are still millions of smaller items left untracked that also carry a risk of causing damage. Traveling at a velocity of more than 27,000 km per hour, even objects as small as a fleck of paint can inflict damage on passing satellites.

There are rules in place already to reduce the risk of collisions. For example, there are national licensing requirements for companies who send objects into space. The relevant national regulators will review proposed launches and manage existing satellites to reduce the risk of collisions. International co-operation has produced best practices and strategies for managing the risks from debris - for example, the US-based Space Surveillance Network provides a platform for crowdsourcing data on how larger pieces of debris move through space. Another effort is being led by the International Telecommunication Union (ITU), a UN agency that works to share information about radio frequencies in space and satellites in orbit.

Yet the system that governs debris mitigation has also been criticised. Alexandre Vallet, from the ITU, insists that the system in use today is ‘a gentlemen’s agreement’, not a binding set of rules. All of the strategies mentioned above are informal and voluntary. The 2009 UN COPUOS guidelines established a list of measures and good practices to reduce the risks from debris - however, these guidelines are not legally binding on states. There are no binding international rules regulating space debris in place today.

With that said, space agencies have implemented the COPUOS guidelines since they came out, and some states have enacted national legislation on space debris mitigation in line with them. For example, the United Kingdom enacted the Outer Space Act 1986, which is the legal basis for the regulation of activities in outer space (including the launch and operation of space objects) carried out by individuals and companies connected to the UK. The Act implements international standards and confers licensing and other powers on the Secretary of State acting through the UK Space Agency.

These national space laws have therefore become a means of transforming non-binding international guidelines into rules that are enforceable at a domestic level against all actors involved in space travel.

The Future Problem

In January 2018 a US startup company, Swarm Technologies, was denied permission by the US Federal Communications Commission to send its own small satellites into space aboard an Indian rocket but continued to do so anyway. Privately-held companies are now able to send their own satellites into space, sometimes in contravention of rules set by states.

As a wider range of actors develop launch capabilities, objects in space continue to pile up. The UN’s Office for Outer Space Affairs has recorded the launch of 8,650 objects in space by various actors since the launch of the first – Sputnik –  in 1957. Further development in the private sector, and the possibility of space tourism – for instance as envisioned by Virgin Galactic, who plan to start selling tickets to space from next year  –  is expected to add substantially to the number of trackable objects in outer space.

If debris does cause damage, the rules of the 1972 Liability Convention will apply. The convention assigns liability for damage to the ‘launching state.’ However, the regime was created during the Cold War, at a time when states launched their own space objects from within their own territory. This creates problems in a post-Space Race world where objects are often launched by non-state actors, or actors from multiple states in co-operation.

In 2009, a collision between an old Russian military satellite, Kosmos-2251, and a commercial satellite, Iridium 33, led to a claim for compensation that revolved around the issue of who was to be held responsible for the collision – Iridium 33 was owned by an American company, but launched from Baikonur Cosmodrome in Kazakhstan by a Russian-owned rocket. The claim was ultimately settled between the parties, leaving the issue unanswered.

Do We Need a Treaty?

Debris problems are arguably serious enough to warrant the question of whether legally binding instruments should be used to force states to implement safer practices. A hypothetical Debris Convention could require states to create and enforce regulations both for their own space activities and for companies and individuals whose activities they license and supervise. A Debris Convention might include duties on removing out-of-use equipment from the Moon or removing aging satellites through re-entry or relocation.

However, it is worth noting that the removal of debris from space relies on technologies such as harpoons and nets as well as an array of newer technologies that are still being developed. While there is a need for space law to be proactive and anticipate the development of new technologies, it must also be wary of falling into the same trap as older treaties and becoming outdated.

Lyall and Larsen suggest the creation of a Debris Convention may also be politically unrealistic, since major spacefaring states are unwilling to set aside the freedom to do as they wish – which the current system provides – in favour of negotiations where they may have to restrict their freedoms. As with the Moon Convention, ‘spacefaring states like voluntary standards.’

Non-binding instruments of ‘soft law’ may therefore be the best solution – or at least, the one with the best chance of success. For example, the World Economic Forum’s Global Future Council on Space Technologies is working on an industry framework that gives incentives for private actors to remove the debris arising from their space activities. This is the kind of effort that may yield actual results when the gold rush begins, as opposed to the current ‘gentleman’s agreement’ between states.

Conclusion

The law on the use of outer space developed one small step at a time in a contentious period of human history, and it is a product of its time. It is now clearer than ever that what is needed is a giant leap for an increasingly restless mankind. The promise of rich resources to be found on the Moon and beyond mean that it will no longer be states that carry out activities in outer space, but also companies and other private actors who are eager to extract these resources for profit.

States, along with companies and individuals, will take on significantly different roles in the future of spaceflight. The law must aim to keep up with technological developments that have given rise both to exciting possibilities – such as the mining of valuable resources on the moon – and dangerous risks – from flying debris to a possible new gold rush. We should recognise that the increase in the number of actors engaging in space activities – commercial or otherwise – does not have to be discouraged. Indeed, it may be impossible to discourage. By shifting away from a scheme of international commitments to soft law instruments and voluntary standards, we may yet achieve the ultimate objective of space law: the profitable but peaceful use of outer space.

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Tagged: International Law, Public Law, Technology

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